The Search & Seizure Show

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, Anthony Bandiero Here attorney, Senior Legal instructor letter roadside chat. And our question comes an officer from Texas.

Can a person in police custody provide consent to search without violating Miranda?

The answer is yes. Here's why. Miranda only applies for the three conditions. The person is in arrest like custody. One. Number two, the officer is asking questions, which is foreseeable that they would that the answers would incriminate the person? Right? To the right. And number three, we're talking to a known officer that the suspect knows he's talking to a police officer versus an undercover agent. Well, we're missing something here. If Okay, we have in custody arrest like casies Actually backup I didn't, I didn't tell you the fact pattern. So I let me let me tell you with an officer stops a suspicious male in a parking lot, who was stumbling all over the place appearing heavily intoxicated, they meet the criteria for a public intoxication arrest. So the male was placed in handcuffs. And in the patrol vehicle, I've removed from his pockets, right for his consent, so forth. You know, this is just a, again, a public intoxication almost like for, we're almost like community caretaking, we're trying to help this person, you know, not get hit by a car and so forth. The officer then asked for consent to search those items. Now. I understand. And he and the cop understands, too, that this is probably gonna be justified under a search incident to arrest. But the officer wants to go beyond this. You know, he did ask this person for consent without reading memoranda. And he's under arrest in the back of a police car. Is that consent valid? I mean, there's the fact that he does not have Miranda invalidated. And the answer is no. Because consent is not something likely to incriminate himself. You're not it's not an interrogation. Asking a person Hey, wait, can I can I search your car? Can I search your backpack, even though they're under arrest, and you have no right to search those things, is not incriminating. It's not interrogation. That's why Miranda is not required. Further, there was a US Supreme Court case on this issue. It's called us vs. Watson like 1976. Were the awkward the suspect was in the back of police car in handcuffs under arrest, that he had nothing to do with it. He was not arrested from his vehicle. He was arrested from a restaurant. And the police asked for consent to search his vehicle. And he said yes. And based off Italian circumstances the court upheld and even though no Miranda was provided. Now sometimes giving Miranda will help, you know, just kind of show that he has rights and it's less coalhurst coercive, but the point is is not required. And that and that is why all right. All right. Keep the questions coming. I love them and hopefully you're enjoying this channel too. We're getting more people you know, you know this thing is it's one of those things where you build up an audience and it starts off slow for every subscriber you work really hard for but then start exponentially starts building up people start sharing them and you hit the subscribe button guy and hit the like button. If you liked what I'm doing here. Thank you, right. I appreciate it. Alright guys, see you next time.

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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for blue to gold law enforcement training. Bring another roadside chat. This one comes from an officer in California. One of my favorite agencies actually, he's a chippy. And I love it I love Calvin hire patrols is a very fine organization in my book. But on topic here, the officer says basically, can an officer reach in slightly into a person's home to pull them out and arrest them? If they have probable cause, but no arrest warrant, right? So let's go over the fact pattern here. So an officer has probable cause, and the person opens up the door, they're talking to the officer, and the suspect is just you know, just an inch inside his house. Right? He's right next to the threshold, essentially, would it be a constitutional violation to reach in there and actually pull this guy out? With just the probable cause alone? No consent, no agency, no arrest warrant? Well, to answer that question, let's go over a few cases. Number one is, we do know that the threshold of a house is the bright line rule of where a person can be arrested. Under Supreme Court precedents, this case is called us versus Santana. And Santana was standing in our doorway when she was placed under arrest. And she ran to her house, the cops filed, they arrested her, you know, evidence was found, during the arrest in the Supreme Court basically held that that is the point of the demarcation line. So one foot forward, Santana's on our porch, one foot back, she's inside the house. So if you're in the doorframe, which is called the threshold, then the person can be arrested under the Fourth Amendment. Now, we don't have any cases from the US Supreme Court about pulling people out of their home. But we do have some cases about related issues involving the home. And I think it's very clear to me at least that the US Supreme Court would not uphold any intrusion into the home to pull somebody out to arrest them unless you had an arrest warrant exigency, or you know, their consent, right? Hey, come on out, you know, when you come out, right. So to support this position, let me read you a case from the 11th circuit. I actually, I'm just trying to actually find an I apologize, but I just realized that I have the citation, but not the name of the case, I'll give you a citation. It is a four a three, f dot 3d 1231. It's the 11th circuit 2007. So basically, what the court has said here is that there was an officer standing on the porch. And he reached into the suspects residence and pulled him out of the door and arrested him. Now, the suspects say that he was behind the threshold of the door completely in his residence. And the court found that going into his home and pulling them out violate the Fourth Amendment, because he didn't have a warrant, consent or Asian circumstances. And they also cite a US Supreme Court case called Kylo. Kylo is a case involving heat imaging using a heat thermal imaging on a home, and they found that that violated the Fourth Amendment. And they found in that court, they said that the bottom line is that unless a warrant is obtained or agency and so forth, any physical invasion of the structures of the home by even a fraction of an inch is too much. And that's what I teach my classes. So some cops have Anthony. What if his hand is on the threshold? Can I grab his hand and pull him out? And I say, I don't know because I've never seen a case like that. However, I will tell you that I would never do it. It's just not in the spirit of Santana. Right? I mean, I say never do it. If I if it was a really serious case, I probably would have exigency, but it's not in the spirit of Santana, to me spent 10 Santana was like the person was, you know, kind of in their doorway, kind of like leaning on the doorframe...

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Hey guys, Anthony Bandiero Here, attorney, Senior Legal instructor for Blue to Gold get a roadside chat question from a cop in, in Texas. And basically the COP is asking, Hey, if my reasonable suspicion has been dispelled, can I still run the person for once before I let them go? And here's kind of like a fact pattern. So the officer conducts a reasonable suspicion stop on a motor vehicle, because the insurance is unconfirmed. Okay, so far, so good. Right? The driver presents the insurance at the window. So the driver presents insurance? And is the tropics is the traffic stop over? Is the officer still allowed to conduct a warrant check, and so forth? In check their license? Well, okay. So here's the question for the court. If the reasonable suspicion is over, if that piece of paper is enough documentation for you to believe that the person has insurance, and, you know, if they have insurance, and then it's over, the running of warrants check, or checking their license is not related to the reasonable suspicion. And that's the problem here. Now, if the officer says, Hey, look at my training experience, you know, if it comes back with no insurance, our, you know, our databases are in sync, insurance talks to the insurance companies, there's there still may be a problem with the insurance, maybe we can start doing some more investigation. But if this is a reasonable suspicion stop, you don't get the latitude that you normally get with probable cause stops, see with a probable cause, stop for speeding lane change, and so forth. You get to do those things reason related to conduct that investigation, like running people for wants, and so forth. But with Terry stops, they're much more, much more narrow. And that's the problem here. There is a case and I forget the name, if you ask me for it, I'll throw it into the comments. But there is a case out of Nevada, really about this issue. The the officer believed that a suspect was underage violating curfew, stopped out with him, asked for his ID. And he provided a California ID that showed that he was an adult. But instead of letting him go, the officer random for once came back with a warrant found the gun in a backpack. And the court found that that was unlawful over the tension. And I have to agree. Because if the person provides you an ID that looks legitimate, it is valid, it is not expired, it doesn't look fake, it has the hologram, the picture doesn't look wonky, like it's you know, a, you know, you know, homemade and so forth. Right, then the warrants, check has nothing to do with the crime at issue. You did not stop him because you believed he's wanted. You stop them because you believe that he was underage. And he proved that he was over age, you know, to a fair, you know, I mean, nothing's perfect. They also said, Well, I want to just make sure because a lot of IDs are fake. Well, you're gonna have to something more than that. Just begin making that assumption. I mean, does the Id look fake at all to you? Is he acting, you know, does it look like him in the picture? And that's the kind of the idea here. So that's the case, I have the backup. What I'm saying here, you certainly there's a case out of Illinois where the officer stopped, the person thought there was a registration violation, determine that there wasn't. And before releasing them simply asked him, Hey, can I see your license before you leave? And the person says, Why don't I don't have a license?...

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Hey guys, Anthony Bandiero Here attorney, Senior Legal instructor for blue to gold law enforcement training.

Now the roadside chat from an officer question comes from an officer in Florida. And basically I think comes down says, Can you clarify protective sweeps at murder scenes? All right. Here's what my officer says. I watched a, you know your video regarding protective sweeps where you referenced a case called Mincy versus Arizona a 1978. Case. I'll give you a little background in a second, where there is no murder scene exception, you know, under the Fourth Amendment, so if respond to report, it's shooting in a driveway of a residence, wouldn't we have exigent circumstances to conduct a warrantless sweep of the residence for possibly other injured parties or to see if the perpetrator was still on scene? In similar fashion, we typically follow the path of the bullet trajectory to ensure no one else was hit, similar to a public safety statement type of issue, right? How many shots did you fire, what direction and so forth? Alright. So in order to understand where my officers coming from, we got to understand what I said before. So under that Minsi case, your police are not allowed to search a to basically process a crime scene in Mincy. Very unfortunately, an officer got killed during an undercover operation. The officers then you know, came in, you know, they rested man. So he actually got shot as well, but he survived. The officers then spent four days processing the crime scene. without consent, right. mincey was not asked, nor did he give his consent, and the officers did not get a warrant. Now, the Supreme Court suppressed a lot of the evidence that was obtained during that search of his of menses residence. Why? Because the Supreme Court said, Look, we understand that this is a serious crime, it's a murder of a police officer. However, there is no murder scene exception, you don't you don't get around the Fourth Amendment warm requirements simply because you have a murder or a very serious crime. Okay. Now, with that in mind, that does not apply to what the officer is talking about here, these protector sweeps, there's totally different Minsi is about one thing, it's about processing crime scenes, it's about the luminol. It's about the strings in this the sticks through the holes to see trajectories, it's about blood splatter, you know, analysis and see, basically, it's about CSI coming in on the scene, and getting trace evidence and stuff. It has nothing to do with two things. Number one, as partner here, number one is any kind of plain view evidence. See if the officers sweep up, you know, let's do a protective sweep of the murder scene to make sure there are no victims, and then they see a gun in plain view, they can absolutely if they want seize that gun under plain view that that guns coming in, they can seize a knife with blood on it. Now many cops are just gonna leave it there. And let's see OSI do that, or the tech does and so forth. And that's fine, too. But the point is, it has nothing to do with these plain view seizures as long as the cops were lawfully present, which brings me to my next point, the protective sweeps Mincy does not prohibit protect sweeps when you reasonably believe more victims or the perpetrator could be inside the house. Therefore, if officers arrive at a crime scene where there is a shooting, and they reasonably believe, and I think most of the time, they are going to believe this that the location of the shooting and where the that the suspect could have retreated into the home. And he could still be in there. But you know, cops can go in there and sweep it and to take him into custody or you know, to detain him and so forth...

Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor for blue to gold Law enforcement and training during the roadside chat. All right, this question where's this officer read me see if it says it actually doesn't say because it came from a personal email, but no problem. Alright, this officer asks, Can police force a GSR test on someone who doesn't want their hat or their hand swapped. And a GSR test for the non-police watchers here is a gunshot residue test. So basically, you know, the Q tip type stuff to see if there's gunshot residue on their hand, which would indicate that they're the ones that fired the firearm? And the answer is yes. And here's why. So first of all, I want to kind of bring my book into the mix here. The search and seizures valve guide, best selling search and seizure book in America. Please check it out. It's on Amazon. It's also on our website bluetogold.com , just click on store and you'll see all the products that we have for you folks that do your job constitutionally. And the it's not directly on the GSR, but it is under a topic called fingernail scrapes. But it's the same kind of constitutional principle. And this issue actually went to the US Supreme Court in 1973. So it happened is a guy named I think his name was cup. But he went into to have an interview with police about the death of his wife. Now the police suspected that he was the perpetrator, he actually killed his wife. And he was saying no, was it me, you know, this is what happened. And so somebody else did it and so forth. Well, while talking to him, he you know, he made some emissions they had they actually had probable cause for him. And they looked at his fingernails, and they saw that there was debris, right blood and skin tissue, maybe even some material fabric material under his fingernails. And the wife was strangled, and so forth. And they then forced him, they forced the scrape of his fingernails, and they sent it to the lab. And that material under his fingernails was from her dress. And it was like DNA, if I got my facts straight. It's been a while since I've read the case. But the point was, was that evidence was used to convict him. Now the husband went to the US Supreme Court and said, Hey, that was an intrusion that you didn't have a warrant, and so forth. And the Supreme Court upheld it. Right, that this was, you know, basically, you know, where there was probable cause. It was they considered a limited intrusion. Right? It's not that intrusive. It's not like a cavity search, right? It's not that intrusive. And it was readily destructible. Right? The destructibility of it. So there is that that agency that kind of exists as well. So if he's not complying, if he's not, you know, cooperating and you know, he's holding his hands and so forth. Can you do a forced GSR swap? I would say the answer is yes. Especially if he's not being cooperative, because what is he going to try to do? While you're, if you're going to go the warrant route, if he's being non-compliant,..

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Hey guys, it's Anthony Bandiero Here, attorney, Senior Legal instructor for blue to gold law enforcement training. i This question comes from an officer in Colorado basically, the officer saying, Can I force a passenger to keep his backpack in a car before I start searching it under probable cause? Right? And the answer is yes, absolutely. Under a case called us versus Ross, if a police officer has probable cause to search a vehicle, they get to conduct a search in the same manner as if they have a warrant. So if, if they if the police believe that that backpack could contain the evidence, then they get to search it, right. And there's also another case out there, I think it's Wyoming versus hufton. Might be often that but somebody in the comments can probably correct me if I'm wrong. But that's another case where the Supreme Court has held that if cops have probable cause for a vehicle, they get to search containers, including those belonging to passengers, again, if they reasonably believe the contraband could be found in that location. So straightforward question. straightforward answer for once. Okay, I hope that helps. Guys. Before you, you leave, please hit like, subscribe, leave a comment, share with your friends. And before until next time, my friends stay safe and keep keep up the great job you doing.

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for Blue to Gold law enforcement training, bringing a roadside chat. This question comes from an officer in Colorado. And the question is, can police search a shoplifting suspects purse for evidence without making an arrest?

And the answer is going to be yes. Definitely, as far as yes, in Colorado, but I believe the answer is yes, everywhere. But let's go through this. Now. Generally speaking, if you have probable cause for somebody, right, and you search them, and you find evidence and you arrest them, Most courts are going to call that a search incident to arrest but Anthony, the search came before the rest that didn't come incident to well, the supreme court requires that the search be contemporaneous, which courts have interpreted to be either right before or right after, you know, generally speaking, however, when you're not going to make an arrest, the PC search is generally authorized under exigency, right? Because when you stop out somebody do you really have you have probable cause that they have evidence they're going to cite and release them or whatever. Do you really have enough time under the circumstances to go get the warrant? Probably not most horses just fight on their agency. And here's the background. So got this batch to $1 General stain that they caught something you know, they saw something stealing makeup and putting in a purse now first of all, we know we got a classy girl, you know, I'm saying if you got a suspect who's stealing makeup from the Dollar General. Ah, that's gonna be a that's a good looking lady right there. Okay, look, she's gonna look like a clown after she puts that makeup on. But I digress at least be a little more bougie. You know, I'm saying like my wife, and you know, get it at least from Walmart. Or if you're really nice, Tarjay. But I can, I will continue. They knew she put in her purse. ...

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Hey guys, Anthony Bandiero Here, attorney, Senior Legal instructor for blue to gold law enforcement training, bringing the roadside chat from a cop. In Utah, the cop asked me something that's actually a base in statutory law, but has a search and seizure component. The officer says, Can you arrest someone for DUI? If you did not see them in actual physical control of the vehicle? Alright.

So the answer is it depends on your state law, because DUI statutes come in two flavors, what are both? What are they have both. One is that the statute requires that the person be driving at the time of contact, or, and or they be in actual physical control, which is where you can prove circumstantially that they were driving the vehicle previously. Now, most states in my experience, allow both right? You the person's driving, right? Which obviously, implies that they're an actual physical 12 That time, or you can also prove circumstantially that they were driving the vehicle in the past that is most common with accidents, right? You show up on an accident scene, and the person's not in the vehicle? How do you prove that they drove? They're intoxicated. That's circumstantial evidence. You can also have direct evidence by them making admissions and so forth, but usually gonna have to have something more than just the admission that they drove the vehicle. So let me give you the the hypo or the hypothetical here, right. So the officer gets a report of an erratic driver. Apparently, many phone many calls on this. He was also reported be all over the roadway. He had traffic cones, he ran people off the roadway, we're looking at a possible DUI. They have the plate, they run it, and they find the vehicle is parked at the residence unoccupied. 10 minutes later, they knock on the door. The driver says, Yeah, I came from that area, right. He makes admissions that he was in the area of where the traffic cones and people ran up the road. But he tells the cops that he drank alcohol since then at home. Now the officer saying in his training experience, there's no way he could have got that intoxicated within the 10 minutes, meaning most people don't drink that heavily within the last 10 minutes, and so forth. Now, the question ultimate question again is, can we arrest this person? ...

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Hey guys, Anthony Bandiero Here, attorney, Senior Legal instructor for Blue to gold's got a question from an officer in Arizona. He says, When can I search a vehicle? After I arrest the driver for DUI? Alright, so, you know, we're making some assumptions here that the vehicle is probably not going to be towed. You know, somebody might come on scene and pick it up, or it's gonna be allowed to be parked. And officer wants to know, hey, look, Can I Can I still search it, you know, as incident to arrest? Based on DUI?

Well, you can search cars on a two circumstances, right? I mean, besides inventories, and consent, and so forth, when it comes to these DUIs? Number one is you have probable cause if you have probable cause that there's evidence in the vehicle, you search it. That's the motor vehicle exception. However, there's another way. And it's actually was provided to us by a very pretty famous case called Arizona versus dance. Arizona versus ganz says that you can search a vehicle if you have reason to believe there is a fence related evidence inside the vehicle. Okay, let's, let's parse that out a little bit. First, is this, this reason to believe, is reason to believe a lower or higher standard than probable cause? Well, it's lower, it's close to like reasonable suspicion. That's the first thing so you can actually search the car with less than probable cause. The second component is reason to believe what that there is offense related evidence instead, inside the vehicle. So if you're going to resume for DUI, do you have any reason to believe that offense related evidence can be inside the vehicle? Most of the time, the answer is going to be? Yes. But don't make it automatic. Don't think that, you know, don't go to court and say, Your Honor, if I arrest somebody for DUI, I'm automatically going to search that vehicle. Don't say stuff like that. Say, why would you have a reason to believe that there's something in the car? The key is articulation. They're coming from they're intoxicated and recovering from a friend's house? Well, it's pretty common that people bring BYOB they bring alcohol to people's houses, and then they retain some of it when they leave, right because alcohol is expensive. You know, you know, it's just kind of a it's a common thing. You know, you're cheap. You know, your friend, your friend feeds you some ribs and some burgers. And during leave your your leftover alcohol from the consume later, you cheap bastard. Right? So stuff like that. I another one, you ask the guy he's coming from a bar? Oh, yeah. How much did you have to drink two beers? Well, take him at face value if he really only had two beers. And he is clearly over the limit, by way more than two beers could do now have a reason to believe that there could be alcohol in that car. Think about it. Right? He saved two beers, then how did it get so drunk? He probably is, you know, maybe has opened containers, even though oftentimes these people lie to you about their consumption. But look, you know, he's telling you two beers. Could there be a receipt in the vehicle for a bar tab? The point is, is that you know, you want to you want to have some articulation, but it's but it's great that this is a this is a great lesson for you. There is actually multiple ways to search vehicles. These are just two of them: probably cars, and the Gantt reasons to believe search. So there's your answer. Short, sweet, keep them coming. Do me a favor, guys. Before you exit the door. Hit the like button. Subscribe, please subscribe and maybe do comment if you have time. Alright, until next time, my friends. Stay safe.

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Hey guys, Anthony Bandiero Here, Attorney, Senior Legal instructor for Blue to Gold law enforcement training, bringing a roadside chat here. We got a question when Officer in Texas. And he says he asks, can you search in Uber passengers property based off of a K9 alert?

And the answer is yes if the officer reasonably believes that the contraband could be in that container, right. So if the, you know, I just give an extreme example, if the Uber driver is under surveillance as a drug dealer, right. And, you know, all the evidence points towards the target of this, you know, of this, of this investigation is that the Uber driver is involved in narcotics, they make a traffic stop for, you know, let's say, some violation of the motor vehicle code. And during that ride in the citation, they run the dog around the car, free or sniff. So far, so good in most states, the dog alerts, and the first place they go to and let's say they saw that the, they observed that the Uber driver picked up a passenger, right. And the first thing that they search for is the passengers belongings. That'd be problematic to me because if I was the defense attorney, I would say, why did you believe there's a fair probability there would be evidence in my client's belongings, based off this prior investigation, like you, your all your indicators are already pointing towards the driver as the culprit for possessing narcotics, why would you just go, and I may or may not win that case. But it's definitely a good question. Right? I wouldn't recommend it. So the officers should first, you know, search the Pat, the Uber driver's belongings, backpack, car, and so forth. Now, during that search, if there's, you know, some facts or circumstances that leave the police lead the police to believe that there could be more evidence in the passage belongings like the passenger knows the driver, and they run the passenger, and he's on paper for narcotics, or he has a criminal history, you know, then, you know, we go from there. Now, if the dog alerts, and we don't know where the prop where the contraband is, you know, is it fair to believe that it could also be in the passenger belongings? I think the answer is yes; I believe that police are going to win that one. Hands down, but I'm just kind of thrown since we have these conversations to move the ball forward. I just wanna let you know that generally speaking, the answer is yes. But why not? Add some context as well? That may be sometimes it may be no. All right. All right. So that's it. Keep the questions coming. Do me a favor. If you liked this video, hit like, please subscribe. Comment below. Share with your friends help me build an audience if you want if you can. I want to reach more cops. Alright, until next time, my friends, stay safe and keep up the great job.

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